Following on from the “Windrush” scandal that has dominated the immigration news is the last few months, the Guardian newspaper has in the last few weeks been highlighting the case of highly skilled migrants seeking indefinite leave to remain in the UK being threatened with removal by the Home Office due to their broad hand use of rule 322(5) of the Immigration Rules to refuse applications on the basis of “bad character”. The Guardian reported that around 1,000 skilled migrants are “wrongly facing deportation”.

Anyone applying for indefinite leave to remain in the UK will be subject to assessment under the “General Grounds for Refusal”. These are found at paragraph 322 of the Immigration Rules. Most of the paragraph subsections deal with refusal for convicted criminals, accused terrorists, those who are a danger to the United Kingdom, those who have made misrepresentations and those who have breached immigration conditions, amongst other things. However, paragraph 322(5) deals specifically with:

“the undesirability of permitted the person concerned to remain in the United Kingdom in the light of his conduct…character and associations or the fact that he represents a threat to national security”.

The Home Office’s guidance for decision makers describes who this section of the paragraph may apply to: “The main types of cases you need to consider for refusal under paragraph 322(5) or referral to other teams are those that involve criminality, a threat to national security, war crimes or travel bans.”.

The Immigration Rules and the associated guidance suggest that there is a high threshold when deciding to refuse indefinite leave to remain under this paragraph. However, the Home Office has been citing this paragraph to justify decisions to refuse leave to remain for skilled migrants over non-criminal tax issues including making lawful minor amendments to tax returns within the lawful timeframe permitted by HMRC. Such migrants include those who have had valid leave in the UK for many years and have lived and worked continuously in the UK contributing by pay tax and national insurance contributions. These migrants include doctors, lawyers, teachers, engineers and IT professionals. Many have children born in the UK.

The Home Office’s reliance on this paragraph to refuse an application where there are tax issues would usually mean an accusation of deceit. The burden here would fall on the Home Office to show that the applicant intended to mislead or deceive. If taken before a First-tier Tribunal Judge it is likely that the Home Office would find it challenging to discharge the burden where there is only a minor tax error or a lawful amendment.

The Home Office’s use (or abuse) of these powers is another example of the impact of the “hostile environment” policy and the government is coming under increasing pressure from MPs and a member of the House of Lords who are establishing separate pressure groups to address the policy and the application of paragraph 322(5) to indefinite leave to remain applications of highly skilled migrants.

On 21 May 2018 the Immigration Minister, Caroline Nokes, answering a question put to her by the MP for Croydon North, Steve Reed, stated that “As I confirmed to the Home Affairs Select Committee on 8 May 2018, I will carry out a review of these cases to see how many showed clear evidence of deceit, and whether any were refused due to minor errors.”

Whilst the Home Office “reviews” these cases and the Windrush cases, it waits to be seen who will emerge as the next group of lawful migrants afflicted by the hostile environment policy and which set of cases the Home Office will next be compelled to “review”.

Here at Lupins our specialists will review your case and ensure that robust and thorough representations are submitted to the Home Office on your behalf, minimising the risk of you being a victim of this unfair approach to decision making.

If you have any concerns about your immigration application or indeed any issues relating to your immigration status, don’t hesitate to contact our immigration specialists on – 020 3503 0880 or email us on enquiries@lupinslaw.com

Article posted by Aisha Ahmed

Aisha AhmedSolicitor

Aisha is qualified under the Law Society Immigration and Asylum Accreditation Scheme as a Senior Caseworker.

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